7 Considerations when drafting a Will

1. Where can you get a Will?

When it comes to drafting your Last Will and Testament, the first thing to decide is: “Where can I get a Will from?” To answer this, consider whether you’re comfortable with using a template, or if you’d prefer that someone drafts it for you. If your estate is relatively uncomplicated then a template can be a quick, easy and cost-effective option. But if you’re hesitant, or you have more complex requirements, then rather consult with a specialist for some advice.   A lot of people get their Wills drafted by their bank or insurance broker. Usually because it’s free or cheap. Bear in mind that the reason this route is cheaper, and sometimes even free, is because the bank or insurance broker usually name themselves as the executor in your Will. This entitles them to earn the executor’s fees for winding up your estate when you die. Many people are comfortable with this. But it’s important to realise that this is not the only route to go. You can insist on choosing your own executors. Your bank or insurance agent will either acquiesce, or charge you a higher fee for the Will, or refuse. Either way the final decision should always be yours, and if you don’t agree with their terms you can choose to get your Will drafted elsewhere.  

2. Identify your executor

The executor is the person who administers and winds up your deceased estate. This is the person who liaises with the Master’s Office, closes your bank accounts, pays your debtors, collects any money owing to you, sells properties, distributes assets, and generally makes sure that your final wishes are carried out. This person should be organised, trustworthy, honest and methodical. So choose wisely.   You need to decide who your executor (and alternate executor) will be. If you’re looking at your loved ones and shaking your head (“Bless you, you crazy bunch, but none of you fit the bill!”) you needn’t fear. The Will should give them “power of assumption”, which means they will be able to appoint an expert to wind up the estate in their stead. Alternatively, you can appoint someone unrelated to be your executor, such as your investment advisor or attorney.  

3. Beneficiaries

Do you have possessions that you want to gift to certain people? Eg. Your grandmother’s engagement ring must go to your niece, and your music collection must go to your best friend. You can specify these as bequests in your Will. These possessions will be distributed before your estate is transferred to your heirs.  

4. Heirs

After all bequests are distributed (if any) who will inherit the balance of your estate? You can name one person or any number of people. If you have more than one heir, make sure that you specify each person’s share. Eg. Your parents get 40% each and your brother gets 20%. You may also want to identify alternate heirs, eg. Your wife inherits everything, but if she dies before you or in the same calamity, then your sister inherits everything.  

5. Testamentary Trust

If there’s any possibility that there’ll be heirs who are still minors (under the age of 18 years), it would be a good idea to include provision for a trust in your will. And remember we’re not just talking about your own kids here! It could be your nieces, nephews, grandchildren, and including children yet to be born. A testamentary trust is a trust that can be created:

• after your death;
• if any of your heirs are minors at the time of your death;
• if your minor heir’s share exceeds a specified amount.

You may also want to identify trustees who would look after the trust in the event that a testamentary trust is required.  

6. Guardians

If you have minor children, it would be a good idea to name guardians in your Will, in the event that you die and their other parent is deceased or dies in the same calamity as you.  

7. Mortal remains

Burial ? Cremation? Your Will is a good place to let your loved ones know what they’re to do with your body once your spirit has left this earth.   Very importantly, read your Will before signing it. If you’ve appointed someone to draft it for you and there’s anything you don’t understand, ask for an explanation. If there is anything you don’t agree with or is not in accordance with your wishes, ask for it to be changed. And above all, if you’re not comfortable with it, don’t sign it.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.